Martin v Moleko (109/2007) [2007] ZANCHC 49 (17 August 2007)

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[2007] ZANCHC 49
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Martin v Moleko (109/2007) [2007] ZANCHC 49 (17 August 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 109/2007
Case
Heard: 03/08/2007
Date
delivered: 17/08/2007
In
the matter between:
Gregory
Jonathan Victorio Martin Applicant
and
Tshwaro Euphemia Pearl
Moleko Respondent
Coram:
Olivier J
JUDGMENT
OLIVIER
J:
The
applicant, mr Gregory Jonathan Victorio Martin, lodged an
application to compel the respondent, mrs Tshwaro Euphemia Pearl

Moleko, to fulfill her obligations in terms of a deed of sale by
signing the documentation necessary to effect transfer of an
immovable
property situate at 9 St Augustines Road, West End,
Kimberley, into the name of the applicant.
In
the notice of motion and in the notice of set-down the property was
described as Erf 9272, Kimberley, and also in a draft order
which
was at a later stage served on the respondent. The applicant has,
however, filed a supplementary affidavit from which it
appears that
the correct description of the property, as reflected in the
applicable deeds registry, is in fact
“Remaining
extent of Erf 9272”
,
in the district and city of Kimberley.
After
the application was initially served on the respondent a notice of
opposition was filed on her behalf by attorneys. Shortly
thereafter
the attorneys withdrew and the respondent has since appeared in
person. She has applied for legal aid, but it was refused.

According to a letter from the Kimberley Justice Centre the
application for legal aid was refused because the respondent had

failed the means test and because they were of the view that the
respondent’s case had no merit.
The
application has been postponed on several occasions to afford the
respondent the opportunity of obtaining legal representation.
On
the last occasion (on 8 June 2007) the respondent apparently
indicated that she intended proceeding in person and an order
was
then made, in the presence of the respondent, postponing the matter
to 3 August 2007 for hearing and stipulating dates for
the filing
of,
inter alia
,
an answering affidavit and heads of argument.
The
respondent did not file heads of argument. On 31 July 2007 (and not
on or before 10 July 2007 as ordered) she filed a document
which
will be referred to again in due course, but which was not an
affidavit. At the hearing on 3 August 2007 the respondent
appeared
in person and indicated that she intended arguing the matter
herself.
After
the notice of opposition was filed, certain supplementary papers
were filed on behalf of the applicant, including a letter
which the
respondent had apparently addressed to the attorneys responsible for
the transfer of the property and which reads as
follows:
“
Regarding the
letter you wrote to me on 06 October 2006 I still cancel the sale of
the property.
The whole mess arose
as a mistake between myself and the agent Mr. Vincent Segwai in that
my specific instruction to him was to sell
my property, 408 Kgadiete
street, Ikhutseng township at Warrenton.
On
the 13
th
September 2006, I sign contract with the agent in result of the house
in Warrenton. The agent made me sign the contract and said
he will
complete the document at a later stage. I signed the document
knowingly that I was selling my Warrenton property.
On
the 26 September I was shocked when I learned from Mr. Vincent Segwai
that the contract is of Kimberley property.
I went to Mr. B.
Sharpley to present my case. He advised me to write a letter.
I
still maintain that the contract must be cancelled and I will defend
any case against me.
I
hope my plea will reach your favorable consideration.”
The
respondent’s defence is therefore, apparently, that she had
instructed the estate agent to sell a property in Warrenton, and
not
the property in Kimberley, and that he had then asked her to sign
the deed of sale in blank form and had promised to complete
it at a
later stage. The nub of the respondent’s version is that she had
not intended selling the property in Kimberley and
that she was
induced, by the agent’s fraud, to sign the deed of sale in blank
form, and that the agent had fraudulently filled
in the particulars
of the Kimberley property and had represented to the purchaser that
the respondent actually offered the Kimberley
property for sale.
The
document filed by the respondent on 31 July 2007 did not comply with
the order of 8 June 2007, because it was not an affidavit
and it was
not filed on or before 10 July 2007. In view of the conclusion to
which I have in any event come as regards the merits
of the
respondent’s version it is unnecessary to make a ruling on the
admissibility of the statement. The essence of the contents
of the
statement is again that the respondent’s agent, mr Vincent Segwai
da Vinci, had wrongfully entered the details of the
Kimberley
property in the deed of sale after she had signed it.
This
was denied by the agent in two affidavits which were filed on behalf
of the applicant in the form of supplementary papers.
It is
therefore clear that there is, on the papers, a factual dispute as
to whether the deed of sale reflected the details of
the Kimberley
property when the respondent signed it. In view of what follows,
however, it is not necessary to make any finding
regarding this
dispute and in what follows I will assume (without deciding) that
the respondent’s version is correct.
The
respondent did not merely apply her signature to the deed of sale on
the last page thereof. What quite clearly appears to be
her
initials can be seen on all the other pages of the deed of sale and,
more importantly, where details such as the description
of the
property, the purchase price and the special conditions now appear
in handwriting. There is no allegation that the agent
had even
bothered to motivate his strange request and there is no explanation
in either the letter or the statement of how the
agent had
“made”
the respondent to do so.
Even
if it were therefor to be accepted that the respondent had signed
and initialled the deed of sale in blank form, she must have
been
aware of the important details that would be filled in by the agent
and, in the apparent absence of any explanation by the
agent as to
why this was necessary, the respondent’s conduct would have been
negligent and unreasonable and would not have entitled
her to avoid
the contract (compare
Standard
Credit Corporation Ltd v Naicker
1987 (2) SA 49
(N),
Standard
Bank of SA Ltd v El-Naddaf and Another
1999 (4) SA 779
(W) at 783H-I and
Prins
v Absa Bank Ltd
1998
(3) SA 904
(C) at 908).
There
is another angle from which the respondent’s defence can be
viewed. Mr Da Vinci, the agent, had quite clearly been the
respondent’s agent and, if she had signed the deed of sale on the
basis that the agent would later fill in material details,
she had
in effect authorised him to make representations on her behalf.
In
this regard I refer to the following passage on page 315 of
Christie’s book
The Law
of Contract in South Africa
,
4
th
Ed:
“
It
is clear on the general principles of agency that a principal who
instructs or authorises his agent to make representations is
responsible for them, and he may thus become liable for damages for
fraud or to have the contract rescinded against him. He is in
the
same position if he has instructed or authorised his agent to make
the contract on his behalf and the agent takes it upon himself
to
make a misrepresentation in the course of so doing, and it is no
defence for the principal to prove that the agent was at the
same
time committing a fraud upon him; having selected the agent, the
principal rather than the third party must suffer from the
agent’s
double fraud.”
In
Randbank
Bpk v Santam Versekeringsmaatskappy
1965 (4) SA 363
(A) the proper approach in such cases was set out as
follows by
Steyn CJ
at 371E-F and 372C-D:
“
Dit
wil my voorkom dat dit wel van belang is om te onderskei tussen die
geval waarin die verteenwoordiger teenoor sy prinsipaal te
staan kom
en die geval waarin die prinsipaal die bedroëne aanspreek om tot eie
voordeel 'n kontrak af te dwing wat deur sy verteenwoordiger
se
bedrog of misleiding tot stand gekom het. Na my oordeel vereis die
billikheid onteenseglik in laasgenoemde geval dat die bedrog
die
prinsipaal sal tref, al is hy hoe onskuldig, en dat die ander party
se posisie nie beoordeel sal word asof geen bedrog teenoor
hom
gepleeg is nie.”
“
Ek
sou eerder meen dat die volgende stelling uit 'n Engelse gewysde, wat
in
Ravene
Plantations Ltd v Estate Abrey and Others
,
1928 AD 143
op bl. 153, goedgekeur word, ook vir die geval waar
magtiging van 'n agent om voorstellings te doen regtens veronderstel
word, hier
van toepassing is:
'I think that every
person who authorises another to act for him in the making of any
contract undertakes for the absence of fraud
in that person in the
execution of the authority given as much as he undertakes for its
absence in himself when he makes the contract.'
Dit is redelik dat
die prinsipaal wat sy verteenwoordiger kies en hom voorhou as 'n
betroubare persoon, en nie die ander party wat
geen seggenskap by die
keuse het nie, die risiko van sy moontlike oneerlike voorstellings of
verswygings sal dra, ….”
(see
also
Aling v Van Dyk
1906 EDC 268
at 271).
The
respondent’s submission, in argument, that the contract should not
be enforced against her and that the applicant could then
take steps
against the agent, would mean that the applicant as the innocent
party would have to suffer the consequences of the
fraud of the
applicant’s agent. Such a result would in my view be neither fair
nor justified, all the more so where it appears
that part of the
purchase price has already been utilised to pay the respondent’s
arrears municipal rates and taxes and to pay
the conveyancing fees.
It follows that I am of the view that the contract should be
enforced against the respondent.
Nothing
would prevent the respondent, on her version, from claiming damages
from the agent (should damages be suffered) and/or from
reporting
him to the applicable authorities, including the police.
The
applicant and his wife, to whom he is married out of community of
property, are co-purchasers of the property. For some reason
the
application was, however, lodged in the name of only the applicant.
His wife, mrs Jennifer Judy Martin, has however now deposed
to an
affidavit in which she states that she is aware of the application,
that she ratifies the applicant’s actions and that
she requests
transfer of the property to them.
As
far as costs are concerned I am afraid that there is no reason to
deviate from the normal rule that costs should follow the result
and
therefore the respondent should, subject to what follows and to what
has been ordered previously as far as wasted costs are
concerned,
pay the costs of the application.
As
far as the costs of the proceedings of 8 June 2007 are concerned,
when the matter was finally postponed for hearing, it appears
that
no order was then made as to costs and therefore each party would be
responsible for its own share of the costs occasioned
by that
postponement. The matter was also at an earlier stage removed from
the roll due to the fact that certain supplementary
affidavits had
not been served on the respondent and mr Haddad (the attorney who
appeared on behalf of the applicant) has, wisely
in my view, not
attempted to argue that the applicant is entitled to any wasted
costs in this regard.
Mr
Haddad has filed no less than three sets of supplementary affidavits
without at any stage applying for leave to do so. Two of
those
affidavits were necessary to clear up the problems regarding the
non-joiner of the applicant’s wife and the wrong description
of
the property; problems which could in no way be attributed to the
respondent. As regards the rest of the supplementary papers
there
is no explanation on oath as to why that information could not have
formed part of the supporting papers.
The
supplementary papers were, however, served on the respondent
timeously and she made no attempt to comment thereon or to object
thereto. In the interests of justice I decided not to strike the
supplementary papers. I am, however, of the view that it would
be
unfair to burden the respondent with the costs of the supplementary
papers and this was in fact also conceded by mr Haddad.
The
applicant did not give the registrar of deeds notice of the
application. I do not, however, intend making any order granting
“authority or an order
involving the performance of any act in the deeds registry”,
as envisaged in section 97 (1) of the Deeds Registry Act, 47 of
1937. The relief I intend granting will be limited to addressing
the rights and obligations of the parties
inter
se
. Although it will in
all probability ultimately result in the registrar of deeds having
to consider the transfer of the property,
no
“performance
of any act”
by the
registrar of deeds will at this stage be authorised or ordered
(compare
Smith v Weston
1961 (1) SA 275
(W) at 279 and
Ex
parte Sanders et Uxor
2002 (5) SA 387
(C) at 391I-392C).
In
the premises I make the following orders:
The
respondent is ordered to forthwith and when required to do so to
take all steps and to sign all documentation that may be necessary
to effect transfer into the names of the applicant, Gregory Jonathan
Victorio Martin and his wife, Jennifer Judy Martin, of the
immovable
property described as Remaining extent of Erf 9272 in the city and
district of Kimberley and situate at 9 St Augustines
Road, West End,
Kimberley.
In
the event of the respondent failing or refusing to sign any such
documents or to take any such steps within 24 hours after having
been called upon to do so, the sheriff is ordered and authorised to
sign such documents and to take such steps on the respondent’s
behalf.
Subject
to all the requirements and the approval of the registrar of deeds
the attorneys Claude Llewellyn Towell and Brezh Sharpley
are
authorised to take all steps necessary to effect such transfer.
The
respondent is ordered to pay the costs of the application, provided
that such costs shall not include the costs of any papers
filed
after 7 February 2007 or the costs occasioned by the removal of the
matter on 30 April 2007.
The
registrar of this Court is requested to inform the respondent of her
right to apply for leave to appeal and of the applicable
legal rules
and requirements.
________________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the applicant: Mr V Haddad
Elliott
Maris Wilmans & Hay, Kimberley